Lawsuits, Congressional Inquiry Plague Opioid Manufacturers

Alicia Ault

March 30, 2017

At least one city and several counties are suing the manufacturers of prescription opioids in a flurry of filings over the past few months, and more are likely to follow.

In addition, Claire McCaskill, the top Democrat on the Senate Homeland Security and Governmental Affairs Committee, has opened an inquiry into whether opioid manufacturers' business practices — such as aggressive marketing, sales quotas, and sponsoring continuing medical education and advocacy groups ― have contributed to overprescribing and overuse of the drugs.

McCaskill sent letters seeking documentation by April 25 to Depomed, Insys, Johnson & Johnson's Janssen Pharmaceuticals, Mylan, and Purdue Pharma.

It is not the first time the opioid manufacturers have faced litigation, but the pressure seems to be rising. In 2007, Purdue Pharma and several executives pled guilty to aggressively and fraudulently promoting OxyContin, paying $600 million to settle the case.

Eight years later, in 2015, Chicago led an attack, suing five opioid makers ― Purdue Pharma, Endo International, Teva Pharmaceuticals, Johnson & Johnson, and Allergan.

In September 2016, a judge ruled the suit could proceed. That suit, which alleges that the companies put profit over science through deceptive and fraudulent marketing of the drugs, is seeking repayment of expenses related to the current opioid epidemic.

In August 2016, Suffolk County, New York, sued on the same basis, alleging deceptive marketing and naming Purdue Pharma, Teva Pharmaceuticals USA, Inc, Cephalon, Inc, Johnson & Johnson's Janssen Pharmaceuticals, and Endo Pharmaceuticals, in addition to several physicians that included Russell Portenoy, Perry Fine, Scott Fishman and Lynn Webster.

Those physicians "were allegedly instrumental in promoting opioids for sale and distribution nationally and in Suffolk County," according to a press release from the law firm, Simmons Hanly Conroy, that filed the county's suit.

Simmons Hanly Conroy also sued the same drug makers on behalf of Broome and Erie counties in New York in early February, again seeking compensatory and punitive damages for the costs of injuries, loss of productivity, social services, deaths, and criminal activity.

The firm, which specializes in asbestos and other mass tort actions, has also been a top contributor to McCaskill, with individual attorneys donating a little more than $90,475 to her coffers from 2011 to 2016, according to OpenSecrets.org, which tracks campaign finance issues.

Purdue Fires Back

Purdue Pharma is seeking dismissal of a suit brought by the city of Everett, Washington, in January 2017.

Everett was the subject of a lengthy 2016 Los Angeles Times investigative story about how Southern California gangs created a huge business trafficking OxyContin in that northwest town and surrounding areas of Snohomish County.

"There is clear evidence that Purdue ignored their responsibility to stop the diversion of OxyContin into the black market, directly leading to the heroin crisis on our streets today," said Everett Mayor Ray Stephanson in a press release.

The city is seeking compensation for the additional costs of coping with the epidemic, including costs related to addiction treatment, social services, housing, law enforcement, prosecution, prisons and jails, diversion programs, and emergency medical services.

In a lengthy rebuttal posted March 10 on its website, Purdue claimed that much of the illegal activity in question was known to various law enforcement agencies long before a Purdue employee notified superiors about suspicions.

That claim is a major underpinning of the drug maker's motion to dismiss the Everett suit, filed March 20 in the US District Court Western District of Washington, Seattle. The company argued that "there is no basis in law for a municipality to bring such an action against a pharmaceutical manufacturer and the City's Complaint fails to state a claim due to multiple, independent legal failings."

Among other issues, the company did not have any legal duty to notify the city of Everett, the filing said.

The company's lawyers also said that Purdue cannot bear responsibility for the city's problems. Purdue's alleged failure to report "is multiple layers removed from the 'drug abuse, addiction and crime' attributable to illegal drug trafficking in Everett, separated by many intentional torts, crimes, and intervening acts by others," said the filing.

The city's claims, which cover events before 2010, also fall outside the 4-year statute of limitations, said the Purdue attorneys.

Need for "Injunctive Relief"

Andrew Kolodny, MD, codirector of the Opioid Policy Research Collaborative at the Heller School for Social Policy and Management, Brandeis University, Waltham, Massachusetts, told Medscape Medical News that he believes the suits against Purdue and other opioid makers are necessary.

Dr Kolodny blames the US Food and Drug Administration for allowing the companies to market extended-release opioids outside of the palliative care setting. This practice led to many more people having access to and abusing that formulation. "We may get in the courts what we didn't get from FDA," he said.

Litigation is also needed "because the companies are still doing this stuff, and we need some injunctive relief," Dr Kolodny said, adding that he predicted more suits in the future. "There are a few law firms actively looking for clients," he said.

Dr Kolodny has disclosed no relevant financial relationships.

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